By Melissa Exline, Esq.
Few family law attorneys in Nevada offer Collaborative Divorce as a means for couples to obtain a decree of divorce. This is despite the fact that the Collaborative Law approach to dispute resolution has grown nationally as a means to aid couples trying to get a divorce. Indeed, as far back as 2011, Nevada enacted the Uniform Collaborative Law Act, which specifically allows for the Collaborative Law process. NRS 38.400 et. seq.
So, What is Collaborative Divorce?
Collaborative Divorce is a way for married couples to get a divorce without the threat of litigation. How is this achieved? Don’t we just negotiate prelitigation and see what we can get done? If it fails, then file suit-right? Collaborative Law addresses precisely this last part, i.e., it takes away the incentive to throw up your hands and file when there is an apparent stalemate.
First, a little background: In 1990, a Minnesota lawyer named Stu Webb began a process that he called “Collaborative Law” with a key feature-the “disqualification agreement.” In 2001, the American Bar Association (ABA) published the first book about Collaborative Law, entitled Collaborative Law, Achieving Effective Resolution in Divorce Without Litigation.1 The book, which was updated in 2009, was written by Pauline H. Tesler, a collaborative attorney in San Francisco who was one of the initial people involved in the evolution of the Collaborative Law movement.2 Stu Webb turned to Collaborative Law in response to the wearisome and frustrating nature of litigated divorce.3 Both Webb and Tesler were instrumental in growing Collaborative Law as a new model for divorce lawyers.
The “disqualification agreement” is, in fact, a key element. It is a binding stipulation that disqualifies both spouses’ attorneys if either party threatens or elects to go to court. This aspect is further included in Nevada law. NRS 38.490 explicitly allows the collaborative lawyer to withdraw from the process if litigation ensues. The reason this works is the spouse has “skin in the game” to continue to negotiate. Unlike mediation, where a party can refuse to agree after a significant amount of work has been put into reaching the tentative agreement, or when parties are involved in prelitigation negotiation where an angry spouse elects litigation at any moment, in Collaborative Law, a party is faced with throwing away the lawyer and the lawyer’s work to begin anew in order to opt to fight in court. This is daunting (and expensive) for a person who starts a case with the mindset of doing a “better” divorce. The net result is a party tends to work with their lawyer to reach the finish line short of going to court.
A Team Approach
In Nevada, most collaborative lawyers work with a divorce “team.” This team includes collaboratively-trained attorneys, mental health professionals as coaches for the parties (translation-the coach is the safe place for the party to unload his or her emotional burden rather than doing so all on the lawyer), child specialists (if needed), and financial professionals ( the ones who can really dig in on tax issues, budgets, valuations and other money-related matters). An Interdisciplinary Collaborative model was developed in which the divorcing couple hires a divorce team consisting of divorce coaches (one for each party), a financial neutral, and a child specialist (if applicable and not required simply because the couple may have children), in addition to a collaborative attorney for each party. 4
“Collaborative Practice provides you and your spouse or partner with the support and guidance of your own lawyers without going to court. Additionally, Collaborative Practice allows you the benefit of coaches, child and financial specialists all working together with you on your team.”
International Academy of Collaborative Professionals (IACP). Id.
Less Scorched Earth-More Respect
Another part of Collaborative Law is the voluntary good faith disclosures of all relevant and material information. All of the cards are on the table. The parties agree to maintain open communication and the teamwork to overlap as many shared goals as possible at the outset of the case. Everyone works together to problem-solve with the team to get each side as much of the limited “pie” as possible. The parties must work in good faith to reach a resolution. The goal is a mutually-acceptable agreement and a “win-win” in family law. Yes, I used those words, instead of”lose-lose,” which is found in a typical litigation-model divorce.
With Collaborative Divorce, the goal is to create a lasting agreement, formed by the parties. Hopefully, it will allow a divorced family the ability to move into their new single status without the baggage and acrimony fighting in court often invites. Divorce with respect is possible.
1 See Pauline H. Tesler, Collaborative Law: Achieving Effective Resolution In Divorce Without Litigation (2001).
2 See Gary L. Voegele, Ronald D. Ousky, and Linda K. Wray, Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better Outcomes, William Mitchell Law Review, Vol. 33, Iss. 3, 2007, Art. 10.
3 See Stu Webb, Collaborative Law: A Practitioner’s Perspective on Its History and Current Practice, 21 J. Am. Acad. Matrim. Law. 155 (2008)( discussing the creation and development of collaborative law); Stu Webb, Collaborative Law: An Alternative for Attorneys Suffering “Family Law Burnout,” 13 Matrim. Strategist,July 2000, at 7.
4 See International Academy of Collaborative Professionals: What is Collaborative Practice, collaborativepractice.com.
For more information on Collaborative Practice visit Nevada Collaborative Divorce Professionals (NCDP) at nevadacollaborativedivorce.com.
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